Self-employed new mothers and EU free movement law: the CJEU delivers the obvious conclusion

Professor Steve Peers, University of Essex

* For more on EU free movement law issues, see the forthcoming second edition of the commentary on the EU Citizenship Directive, by Elspeth Guild, Steve Peers and Jonathan Tomkin – published soon

What happens when an EU citizen moves to another Member State, and has a baby? New parents likely face some sleepless nights in any event; but should new mothers in particular lose further sleep at the prospect of losing their status under EU free movement law? The CJEU, having ruled on this issues as regards employed new mothers in 2014 (the Saint-Prix judgment, discussed here), has now extended its case law to cover self-employed women who take a maternity break, in its recent judgment in Dakneviciute.

Background

The main EU law on EU citizens’ right to move and reside in another country – often known as the ‘citizens’ Directive’, does not provide for unlimited rights for EU citizens to go and live in another Member States. To exercise free movement rights, EU citizens must be employed, self-employed, students, have sufficient resources, or be a family member of someone in one of those categories (as further defined by the Directive, the EU Treaties, and relevant case law). After five years’ residence in accordance with this EU law, they obtain the right to permanent residence, at which point such conditions no longer apply.

Mothers-to-be who are in paid work as as the baby’s birth approaches often simply take maternity leave from their current employer, and then return to work for that employer some time after the baby is born. This is underpinned by a separate EU law on pregnant workers, which prohibits dismissal of women who are pregnant or on maternity leave save for ‘exceptional cases’ (on these exceptions, see the CJEU judgment in Porras Guisado). Equally, the same law guarantees continuation of an employment contract (except for a possible one-year waiting period to qualify for maternity pay).  In principle this should mean that the women concerned remain workers under free movement law, so they should be at no risk of losing status under that law.

The difficulty is for women who were employed but who gave up their current work before the birth (as in Saint Prix) or who are self-employed (as in Dakneviciute). Do they retain status as workers or self-employed persons under free movement law despite this? The citizens’ Directive says that status is retained in the event of: temporary inability to work ‘as the result of an illness or accident’; involuntary unemployment after being employed more than one year, if registered as a job-seeker; involuntary unemployment after being employed for less than one year, or if a fixed-term contract period of less than a year has ended, if registered as a job-seeker, although retention of status might in these cases only last for six months; or taking up vocational training, which must be linked to the prior employment unless the EU citizen is involuntarily unemployed.

In the Saint Prix case, the EU citizen dropped her teacher training course when she became pregnant, did some short-term work, and then gave up looking for work as the due date for her baby became closer. So she did not qualify under the citizens’ Directive’s rules for retaining worker status. However, the CJEU ruled that those rules were not exhaustive. In the Court’s view, the notion of ‘worker’ came first and foremost from the primary law of the EU Treaties, and covered someone who had previously worked in that State, given up work due to the physical impact of late pregnancy, and returned to work within a ‘reasonable period’ afterward. That period was to be defined taking account of the ‘specific circumstances of the case’, as well as national law on maternity leave, which must be at least 14 weeks in order to comply with the EU law on pregnant workers, although Member States can set longer periods. In fact a later judgment in the UK applied a one-year period in principle to such cases.

Subsequently, in its 2017 judgment in Gusa (which did not concern pregnancy), the CJEU ruled that self-employed EU citizens who became involuntarily no longer self-employed after one year should be treated the same as having retained their self-employed status, on the same basis that workers retain it under the citizens’ Directive in the event of involuntary unemployment.

Facts and judgment

Ms Dakneviciute was employed in the UK, then became a self-employed beauty therapist when she became pregnant. After her baby was born, she briefly returned to self-employment, then briefly claimed benefits, then became employed again. This dispute concerned her eligibility for child benefit: the UK authorities claimed that she did not qualify for it, because she did not have a sufficient right to reside. Uncertain as to whether the Saint Prix judgment applied to the self-employed, even despite the Gusa judgment in the meantime, a UK tribunal asked the CJEU to clarify whether previously self-employed new mothers retained status under free movement by analogy with previously employed new mothers.

The Court ruled that Ms Dakneviciute did retain her status, which meant that she was eligible for child benefit. Previously case law had treated employed and self-employed EU citizens in a unified way; the Saint Prix case applied by analogy; applying Gusa (which had referred to the vulnerability of unemployed EU citizens), pregnant women are vulnerable, whether they are employed or self-employed; and the EU had adopted a law on self-employed pregnant women, which refers to maternity leave on a similar basis as the EU law on pregnant workers.

Furthermore, the Court rejected the UK government’s argument that self-employed women could easily send someone to replace them during a maternity break. This was apparently an interpretation of the Gusa judgment (see paras 21 and 38 of the Dakneviciute judgment), although the Gusa judgment made no point about replacing individual self-employed persons. Finally, as in the Saint Prix judgment, the Court referred to the rules in the citizens’ Directive on obtaining permanent residence, which provide that a single absence of up to one year for pregnancy or childbirth (or other ‘important’ reasons) does not stop the clock as regards obtaining the five years’ residence necessary to qualify for permanent residence.

It followed that a previously self-employed EU citizen new mother retains her status of being self-employed, provided that she returns ‘to the same or another self-employed activity or employment within a reasonable period after the birth of her child’.

Comments

In light of the Saint Prix and Gusa judgments, the Court’s ruling that previously self-employed EU citizen new mothers retain their status is unsurprising.  A non-lawyer might even describe it as a statement of the bleeding obvious. It is striking that the UK government continued to fight the case, including by an interpretation of the Gusa judgment that has no basis in that judgment. Nor does that argument have any basis in the Advocate-General’s opinion in Gusa, which actually conversely said (in paras 72 and 73) that Saint Prix applied by analogy to self-employed persons. With great respect, the UK tribunal should not have given the government's argument the time of day.  

The most pressing practical question for previously self-employed EU citizen new mothers is how to determine the ‘reasonable length of time’ which they have to take up employment or self-employment in order to retain their status. The Court makes no suggestion about how long that might be, perhaps because it was conceded in the national courts that if Ms Dakneviciute retained her free movement status, she had obtained new work within a reasonable period of time (see para 19 of the judgment: perhaps this concession was in light of national case law referred to above). In practice, the EU law on self-employed pregnant women, like the EU law on pregnant workers, refers to a minimum period of 14 weeks, with Member States free to exceed that minimum (as the UK has done). Unlike in Saint Prix the Court does not refer again to also taking account of specific circumstances of the new mother’s case; but since the Court was applying that earlier judgment by analogy, this omission may well be accidental.

What is the impact of Brexit? In the event that the withdrawal agreement is ratified, the citizens’ rights provisions (discussed here) retain existing law (including case law) for UK citizens who move to the EU27, and EU27 citizens who move to the UK, before the end of the transitional period in the agreement (which is end 2020, with a possible extension of one or two years). In the event of leaving the EU without an agreement, the UK could chip away at these rights for EU27 citizens, even if they were already resident before Brexit Day – and EU27 States could do likewise for UK citizens. However, although both of these cases came from the UK courts, they will still be relevant to the remaining Member States (ie Irish citizens moving to Germany) in any event.

Finally, there’s a broader social and historical context to this judgment. The Court expressly mentions the vulnerability of pregnant workers. But new mums in Ms Dakneviciute’s position are also vulnerable as people who are migrant EU citizens, unemployed, and previously lower paid.  The Court’s judgment cuts through this intersectionality of sex, nationality and social class to guarantee access to child benefit regardless. Yet there’s a fin de siècle feeling to this ruling: in six weeks’ time, the UK might be able to disapply it to EU citizens in future. Benefits and unemployed people are obvious targets of the xenophobia that cynical politicians stoke.

Barnard & Peers: chapter 13; chapter 20

Photo credit: Coraims

Workers’ rights in the gig economy: is the new EU Directive on transparent and predictable working conditions in the EU really a boost?

Bartłomiej Bednarowicz, PhD Researcher at the Faculty of Law of the University of Antwerp

Last week, the European Parliament approved the Directive on Transparent and Predictable Working Conditions in the European Union, which interestingly is the very first legally binding instrument that has been fleshed out from the European Pillar of Social Rights (EPSR) proclaimed by the European Commission, European Parliament and the Council in 2017. [Update: the Directive was published in the EU Official Journal in July 2019]

In short, the Pillar, which consists of a set of 20 principles and rights, is to serve as a way to deliver new and more effective rights to the citizens in 3 main categories: equal opportunities and access to the labour market, fair working conditions and social protection and inclusion. It is designed as ‘a compass for a renewed process of upward convergence towards the future of social Europe’. However, it lacks any solid enforceability vis-à-vis the Member States, so at least for the time being it is more of symbolic value, yet with a fully-fledged boosting potential to become a catalyst for the Court of Justice while interpreting the Directive on Transparent and Predictable Working Conditions.

Background

The Directive, proposed by the Commission as a Christmas present in 2017, is to repeal the archaic Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (‘Written Statement Directive’) which dates back from 1991 when no one supposed that the world of work would undergo such a transition and that people will be using apps like Uber or Deliveroo on a daily basis. The new Directive’s primary objective is to improve the working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. It covers all workers in all forms of work, including those in the most flexible non-standard and new forms of work such as zero-hour contracts, casual work, domestic work, voucher-based work or even platform work. According to the Impact Assessment presented by the Commission, the coverage will extend up to 2-3 million workers, including 3% of platform workers, overall impacting 200 million workers in the EU.

The adopted Directive

The Directive guarantees that all workers within its scope, regardless of the specific working arrangements they are engaged in, should be provided with more thorough and complete information regarding the essential aspects of their work, which are to be received by the worker – depending on the nature of the information, either within first 7 days or within a month since the employment commences. Workers will also have a right to be informed within a reasonable period in advance when exactly their employment will start, which is especially important for those with very variable working schedules that are to be determined by the employer in cases of on-demand work or zero-hours contracts. Workers ought to also have a right to seek additional employment by having widespread exclusivity clauses prohibited. Probation periods are limited to 6 months and can be extended only in exceptional circumstances. The Directive comes also with substantiated provisions on enforcement and introduces the reversed burden of proof to ensure that workers will effectively benefit from these rights and will not be subject to adverse treatment or consequences because they have exercised their rights.

More importantly, the Directive has a broad personal scope of application, although the initial proposal foresaw a wider ambit. For the first time in the history of EU employment law, the Commission presented a codified concept of a worker derived from the CJEU case-law. However, some Member States were far from being happy with the new proposal, so heated discussions in the Council were to be expected soon after the reasoned opinion came in from the Swedish Parliament asserting that the draft does not comply with the principle of subsidiarity.

As suspected, the proposal underwent some serious modifications in the Council which undercut its most ambitious proviso relating to the introduction of a Union definition of a worker. What is left in this regard, is ‘an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State with consideration to the case-law of the Court of Justice’. This severely undermined the Commission’s initial intentions to safeguard a unilateral personal scope of application that would preclude Member States from policing that very definition rigidly.

The case-law on free movement identifies that ‘the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’ (Case 66/86 Lawrie-Blum) provided ‘the pursued activity is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary’ (Case 53/81 Levin). Member States can nevertheless decide not to apply the Directive to workers whose predetermined and actual working time is equal to or less than an average of three hours per week in a reference period of four consecutive weeks. However, for those engaged in zero-hours contracts, i.e. contracts that do not stipulate guaranteed working hours and do not create any obligations for the employer to offer the job and for the worker to accept the offered job, do not enjoy such an exclusion, so the Directive applies in full.

The reasoning behind it is that such workers constitute the most vulnerable workforce prone to experience precarity dictated by low income and unstable employment. On top of that, in cases of irregular work patterns, workers on zero-hours contracts or else engaged in on-demand work can be only called into work within the time frames they have made themselves available to the employer. If they are called in outside their reference hour period, workers are allowed to refuse the job assignment and cannot be subject to any adverse consequences by the employer, i.e. not calling the worker in again. In situations where the employer cancels a previously agreed work assignment, workers will be also entitled to compensation. This surely gives certain stability for the workers who are working on contracts with a variable working pattern.

What is more, special provisions are addressed to the Member States to prevent abusive practices of employers when it comes to on-demand work. Therefore, Member States can take measures to fight abuse such as setting limitations to the use and duration of such contracts or introduction of a rebuttable presumption of an existence of an employment contract stipulating a minimum amount of paid hours. It remains to be seen how this provision will be actually implemented in practice.

Perhaps the most far-reaching provision of the Directive is the workers’ right to transition for another form of employment that is more predictable and secure. If requested, the worker must receive a written reply from the employer with clear reasons for the decision within one month. The Directive also prescribes a legal presumption in cases when a worker has not received in due time partially or all of the mandatory information. In such situations, the worker is to enjoy the favourable presumptions that are to be defined in national law, which the employer has a right to rebut. Finally, Member States have 3 years to implement the Directive.

Comments

The Directive is to be warmly welcomed as it introduces a nuanced approach towards the mandatory information obligation regime for every employment relationship, regardless of its form. The only (narrow) inclusive criterion is the personal ambit of application to be decided pursuant to national law. However, a clear reference to the case-law of the CJEU on the concept of a worker gives certain hope that the Directive is capable of being interpreted broadly to attain its overarching objective of social policy. It is a shame that the Council decided not to include the full codified definition of a worker in the final text but at least placing an explicit reference to CJEU case-law boosts the EU legal awareness by hinting where to search for sources, especially for national judges or employment lawyers.

In any case, simple information rights are far from combating precarious employment and social exclusion so widely present nowadays in the gig economy. The Directive nonetheless is to be seen as a stepping stone in paving the winding road leading to high-quality jobs. The major bulk of responsibility lies now on the Member States to properly implement it. Once that is done, the national employment judges would have to step up their game and take charge of the sincere enforcement of the rules in the full spirit of EU law.

Indeed, the biggest pitfall is that the Directive has a different target group which is certainly not all platform workers. For them to enjoy the rights, they need to be first reclassified from bogus (false) self-employment and that might be an easier case for on-demand work (e.g. Uber, Deliveroo), but definitely not for crowdworkers who perform their tasks solely online (e.g. Amazon Mechanical Turk, Upwork, Clickworker). This will not be done automatically by virtue of the Directive, which nonetheless mentions in the recitals that false classification of a self-employed person under national law does not preclude the person from being a worker under EU law (Case C-413/13 FNV).

This will be up to the national courts to decide but while faced with that exercise, judges can and in fact, should, rely on CJEU case-law and elements that already echoed in Luxembourg such as degree of power of management, supervision, margin of discretion in the performance of assigned duties, capability to be dismissed and merely notional general independence; recruitment procedure and nature of the entrusted duties; freedom to choose the time, place and content of the work; extent of rights and duties vested upon the individual. Only then, platform workers can fall under the scope of the Directive and be protected against unpredictable work patterns which will enhance the transparency of their jobs. To put in short and bluntly, the principle of sincere cooperation and effet utile simply demands it.

On the bright side, the major accomplishment is that the Commission has actually delivered a new legal instrument in the long-forgotten field of employment as social policy is back on the agenda again. The European Pillar of Social Rights, albeit not binding, is therefore not an empty set of profound Eurojargon. Explicit references made in the Directive to the EPSR (thanks to the Parliament’s amendments) will allow the Court of Justice to elaborate on the Pillar’s value and status, just as it was with the EU Charter before it came into force. Frankly, more initiatives arising from the EPSR are coming up: the European Labour Authority has been set up, the Council Recommendation (not binding) for access to social protection for workers and the self-employed has been agreed and the Proposal for a Directive on work-life balance for parents has been negotiated successfully. It seems that the Commission’s hands are finally full with mainstreaming material social rights for the sake of social Europe and its future.

To conclude, in the wake of the centenary of the International Labour Organization, let us not forget about the apt statement from the 1944 Declaration of Philadelphia that ‘labour is not a commodity’. Thankfully, the Commission, after a period of stagnation taken in the name of flexicurity, seems to have finally gotten that forsaken memo. Point for the Commission, a win for the workers but still a loss for some platform workers who struggle to make ends meet in the gig economy.

Barnard & Peers: chapter 20

Photo credit: Manchester Evening News

Does EU law protect gig economy workers? Tensions in the CJEU’s case law

Dr Maria Tzanakopoulou, Teaching Fellow, King's College London and University College London

BACKGROUND

The gig economy is on the rise precipitating much discussion about working conditions –from working time to remuneration and from maternity and paternity protection to the all important classification of individuals working in the gig economy pool (see, eg, here and here). The case of King marks the debut of CJEU judgments related to the regulation of business conduct and worker’s rights in the gig economy. Here, the CJEU upholds the right of a self-employed worker to indeterminately carry over entitlements deriving from unexercised paid leave, while it protects Mr King’s right to an effective remedy before the courts. The story continues with the Court’s much debated Uber decision (discussed here), which reportedly blows in the face of businesses and becomes a stepping stone to more comprehensive protection of the gig economy worker (here). Perhaps somewhat surprisingly for those familiar with the Court’s often dismissive approach to labour rights (see, eg, here), the CJEU now seems, at least at first sight, reluctant to leave the gig economy unregulated and to turn its back on gig economy labour forces.

Very briefly, the Court in Uber classifies the company as a provider that ‘offers urban transport services’ [para 38] rather than as a mere intermediary between drivers and clients, as the company itself maintains. The tangible effect of this decision is the subordination of Uber to national regulatory measures. A less visible corollary of the case will be Uber’s increased responsibilities towards its drivers. The case of King, touching as it does upon the crucial matter of paid leave, has a more visible effect on workers. So much so, that the press was quick to present the decision as a breakthrough for gig economy workers at large (here). However, the extent to which the case makes headway in bringing gig economy workers as a whole under the protective ambit of employment rights is a matter that is not entirely straightforward.

FACTS

Mr King worked as a salesman for a company installing doors and windows (SWWL) from 1999 until his dismissal, brought into effect on the day of his 65th birthday, in 2012. According to his contract, a self-employed commission-only contract, Mr King was paid on the basis of the sales he concluded. His right to paid leave was unclear, as the contract was silent on that matter. In his Opinion, AG Tanchev reports that Mr King was in the meantime offered an employee contract, which would bring him into the sphere of full-blown worker protection, but he opted for carrying on his work on a self-employed basis. (Mr King later objected that the AG misunderstood the particular incident, but we lack further clarification, as the Court did not consider it necessary to reopen the oral procedure for what it apparently saw as a matter of secondary importance.)

Upon his dismissal in 2012, Mr King brought his case to the Employment Tribunal. Mr King succeeded in his claims that the dismissal was grounded upon discrimination on the basis of age and that he satisfied the definition of ‘worker’ for the purposes of the UK Working Time Regulations, implementing Directive 2003/88 (the ‘working time Directive’. The Employment Tribunal further found that Mr King was entitled to recover the sum of his untaken paid leave for his final year with SWWL, as well as the sum amounting to holiday he had taken from 1999 until 2012 and which had remained unpaid throughout his thirteen years of work.

So much remained undisputed by SWWL. However, the Employment Tribunal’s final finding, namely that Mr King was further entitled to recover the sum for any leave not actually taken during his work with SWWL, was appealed to the Employment Appeal Tribunal (‘EAT’). The latter accepted the appeal and passed the case back on the Employment Tribunal for reconsideration. According to the EAT’s line of argument, King would have to first take (unpaid) leave and subsequently raise a claim related to payment of that leave. This finding was primarily based on Regulation 13(9) of the domestic implementing legislation, which establishes that leave can only be taken in the relevant leave year and, if not, it cannot be replaced by payment in lieu, unless employment has been terminated. Regulation 30 further establishes that ‘[a] worker may present a complaint to an employment tribunal that his employer’ has either not allowed him annual leave or ‘has failed to pay him the whole or any part of any amount due to him’ in respect of annual leave. Logically then, failure to pay shall precede any complaint presented. The time limit for the complaint, laid down in Regulation 30(2)), is set at three months after the claim arises or at whatever period the tribunal considers appropriate where ‘it was not reasonably practicable for the complaint to be presented’. When that complaint is not presented in time then any entitlement, and in this case Mr King’s entitlement, shall be lost.

Mr King was of a different opinion. As failure to take annual leave was a direct result of his employer’s refusal to pay, the relevant rights were carried over from year to year until his termination of employment. His claim was therefore brought in time.

The EAT’s decision was, thus, appealed to the Court of Appeal, which referred five questions, of both a procedural and a substantive nature, to the CJEU. In a nutshell, the Court of Appeal asked whether the ‘use it or lose it’ approach of the Regulations is compatible with the right to an effective remedy. The question targeted the EAT’s interpretation that a worker can bring a complaint only upon taking leave, which the employer refuses to pay. The Court further asked if the right to paid leave carries over beyond the relevant leave year, in cases where non-exercise of that right is caused by the employer’s refusal to pay. If so, how long does that right carry over for?

THE COURT

The CJEU commenced on its assessment by emphasising the social significance of the right to paid leave. The Court was quick to bring the EU Charter of Fundamental Rights into its reasoning, referring in particular to article 31(2), which lays down the right to paid annual leave. The purpose of Directive 2003/88 read in the light of the Charter is to allow the worker to enjoy annual leave under conditions of remuneration comparable to those of working periods: the right to paid leave cannot be ‘subject to any preconditions whatsoever’ [para 33]. If leave itself or remuneration become uncertain as a result of the employer’s conduct, then the right is in jeopardy.

On the basis of the above, the CJEU rejected the EAT’s interpretation of the Regulations as incompatible with the Directive: ‘in the case of a worker in a situation such as that of Mr King, if the national remedies are interpreted as indicated [by the EAT], it is impossible for that worker to invoke, after termination of the employment relationship, a breach of Article 7 of Directive 2003/88 in respect of paid leave due but not taken, in order to receive the allowance referred to in paragraph 2 of that article. A worker such as Mr King would thus be deprived of an effective remedy’ [para 46]. As such, a complaint cannot be exclusively available after the employer has refused to pay for a leave already taken. This is so, despite the fact that the Directive itself is silent on remedies, not least because the Charter enshrines the right to an effective remedy in article 47 [para 41].

With respect to a worker’s ability to carry over paid annual leave rights, the Court first recognised that Mr King did not exercise his rights for reasons beyond his control. Whether or not Mr King was in the meantime offered employee status was irrelevant for the CJEU, which looked at the worker’s status as it ‘existed and persisted’ until retirement, whatever the reason for that status may be [para 50]. According to the Court’s settled case law on absence due to sickness, allowance in lieu should be available to those unable to exercise paid leave rights for reasons beyond their control. However, a carry over limit of fifteen months should be equally acceptable, given that the Court also has regard to ‘the protection of employers faced with the risk that a worker will accumulate periods of absence of too great a length and the difficulties in the organisation of work which such periods might entail’ [para 55]. The question thus came down to whether Mr King’s situation was comparable to absence due to sickness.

The Court here noted that ‘protection of [Mr King’s] employer’s interests does not seem strictly necessary’ [para 59], especially in light of the need for the right to paid leave to be interpreted broadly:

‘It must be noted that the assessment of the right of a worker, such as Mr King, to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence which, as with long-term sickness absence, would have led to difficulties in the organisation of work. On the contrary, the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave’ [para 60].

The Court concluded that ‘an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences’ [para 63], which in this case amounted to the sum due for all leaves untaken by Mr King over the years.

COMMENT

At the outset, King is a case that gives recognition to a significant employment right and should be welcome on that ground alone. The Court did not shy way from stretching the outer limits of the right to paid leave and fired straight at the employer. In symbolic terms, the case seems equally interesting, with the CJEU’s diction hinting at a robust defence of what the Court calls ‘EU social law’ against the interests of the employer.

Reliance on the Charter as a leg-up in the Court’s broad interpretation of the right is also interesting, albeit, I think, not necessarily decisive for this case. The point of a purposive interpretation, like the one pursued by the Court here, is precisely that it needs not rely on text (see here). The Court could have decided much the same without the Charter’s assistance. That said, the decision is a harsh message to businesses engaging freelancers or generally workers that lack employee status.

Nevertheless, the significance of King for gig economy worker rights at large should not be overestimated. The grand scheme of things suggests that, whereas workers in the gig economy can win the small individual battles before the Court, the CJEU is unwilling to open up the way to wide-ranging protection.

To begin with, Mr King’s worker status was not under dispute, thus disburdening the CJEU of examination of the personal scope of the right to paid leave. In other words, the Court did not discuss applicability of that right to gig economy workers as such. As the AG notes in his Opinion, the case was effectively concerned with the essence, rather than the existence, of the right [para 30]. In light of this, it could be argued that the Court’s primary concern was to interpret the right and only at a secondary level to protect the gig economy worker. Certainly, the specificities of the case, and of Mr King’s situation, render this a consequential decision for many workers in the gig economy. Nevertheless, the extent to which the relevant legislation will cover a gig economy worker remains contingent upon each individual worker’s exact employment status.

What is perhaps more important is that, once King is compared to the Court’s approach to collective labour rights in the gig economy, the picture becomes even less promising.

Indeed, the social dimension of employment rights emphasised in King appears to be neglected in cases dealing with collective labour rights of the gig economy worker. It is now established case law of the Court that collective bodies representing self-employed workers pursue an economic activity and are therefore caught by the restrictive framework of competition law rules (see Pavlov). This is so, the Court has aegued, despite these bodies’ pursuit of a social objective [Pavlov, para 118]. The importance of Pavlov is put down not to the specific facts of the case but to the Court’s refusal to invest a body representing self-employed workers with equal protection as, eg, collective bargaining agreements between employers and employees (see, eg, Albany).

On the contrary, the Court has noted that ‘the Treaty contains no provisions (…) encouraging the members of the liberal professions to conclude collective agreements with a view to improving their terms of employment and working conditions (…)’ [para 69]. Worse even, in the more recent FNW Kunsten, the Court declared in unequivocal terms that ‘in so far as an organisation representing workers carries out negotiations acting in the name, and on behalf, of those self-employed persons who are its members, it does not act as a trade union association and therefore as a social partner, but, in reality, acts as an association of undertakings’ [para 28] and therefore falls within the scope of competition law rules.

All things considered, the Court appears to be adopting double standards. It is ready to recognise the social significance of the right to paid leave of an individual freelancer, yet it stops short of shielding the right of the self-employed worker to collective bargaining.

One way forward, then, would be for the Court to recognise individual rights piecemeal, as in King. Another way would be for individuals to rely on the courts, European or domestic, for an inclusive approach to self-employed workers, as in Aslam. Here, the worker status of Uber drivers, recognised by the Employment Tribunal and upheld by the EAT, placed these individuals within the protective ambit of the National Minimum Wage Act and the Working Time Regulations. Like Mr King, the status of Uber drivers as workers for the purposes of these pieces of legislation is now beyond dispute. It is, however, doubtful whether any of the above would be able to negotiate their salary or pension through collective bargaining free from the burden of EU competition law rules. A third way forward would perhaps be for the CJEU to recognise the social significance of bargaining rights and to guarantee them for gig economy workers. Only then, I think, will it be justified to say that the war was won.

King wins a battle but the war is ongoing: when an employment right can be defended individually before the court, but not collectively in the field –even where that right is upheld– I shall remain hesitant to ring victory bell for gig economy workers.

Barnard & Peers: chapter 20

Photo credit: euractiv.com